OLUSEYE ADEROUNMU v DR DEBORAH COLVIN

Capacity to conduct litigation is decision-specific and must be assessed by applying the statutory test to the particular litigation. The court must consider all available evidence, including medical records, lay evidence, expert evidence and the person’s demonstrated ability to make complex decisions. Communication difficulties do not necessarily prevent capacity where suitable assistance enables understanding, retention, weighing and communication of decisions.

For limitation purposes, knowledge may be actual or constructive. Under section 33 of the Limitation Act 1980, the central question is whether it is fair and just to allow the claim to proceed despite delay, balancing prejudice and considering the statutory factors. The court placed particular weight on the continuing possibility of a fair trial.

The claimant suffered a serious stroke four days after consulting the defendant general practitioner. He alleged that she negligently failed to recognise the symptoms and refer him for urgent investigation.

The claim was issued nearly eight years after the injury. The defendant pleaded limitation, contending that the claimant had capacity to conduct litigation and had acquired the necessary knowledge more than three years before issue. The claimant relied primarily on lack of litigation capacity, alternatively delayed knowledge, and, alternatively, section 33 of the Limitation Act 1980.

The court tried limitation and capacity as preliminary issues, including whether the claimant had litigation capacity at all material times, when knowledge arose, and whether it was equitable to disapply the limitation provisions.

1. Capacity. The statutory test under sections 1 to 3 of the Mental Capacity Act 2005 is issue-specific. The relevant question was whether the claimant could understand, retain, use or weigh information and communicate decisions concerning this litigation. The court was not confined to expert evidence and was entitled to assess the whole evidential picture.
2. The claimant had expressive and receptive dysphasia and cognitive impairments, but those difficulties did not displace the statutory presumption of capacity. With appropriate assistance, he could understand the issues on liability and causation, give instructions about his condition and losses, and understand the advantages and disadvantages of settlement. He did not need to understand every aspect of the claim or every expert report. He had capacity to litigate at the material times.
3. Date of knowledge. The claimant knew by December 2010 that his injury was significant and that he attributed it to an omission by his general practitioner. He therefore had actual or constructive knowledge for section 14 purposes no later than 20 December 2010.
4. Section 33 discretion. The burden was on the claimant to show that it would be inequitable to enforce the limitation period. The court considered the six statutory factors, including the length and reasons for delay, evidential cogency, the defendant’s conduct, disability, promptness and steps taken to obtain advice. The delay was explained by the claimant’s circumstances, support needs and immigration litigation. Medical records remained available, the defendant had an independent recollection of the consultation, and a fair trial remained possible.
5. Balancing the parties’ prejudice and considering all the circumstances, it was equitable to allow the action to proceed. The limitation provisions were accordingly disapplied under section 33.